Johnson v. State, 98-KA-00293-COA.

• Citation: 756 So.2d 4
• Decision Date: 06 April 1999
• Docket Number: No. 98-KA-00293-COA.,98-KA-00293-COA.
• Parties: Laverl JOHNSON, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

756 So.2d 4

Laverl JOHNSON, Appellant, v. STATE of Mississippi, Appellee.

No. 98-KA-00293-COA.

Court of Appeals of Mississippi.

April 6, 1999.

Thomas H. Pearson, Ann R. Phillips, Clarksdale, Attorneys for Appellant.

Office of the Attorney General by Jean Smith Vaughan, Attorney for Appellee.

BEFORE McMILLIN, P.J., DIAZ, AND KING, JJ.

DIAZ, J., for the Court:

¶ 1. Laverl Johnson appeals the decision of the Coahoma County Circuit Court finding him guilty of discharging a shotgun into the dwelling house of Pearlie Mae Williams in violation of Mississippi Code Annotated Section 97-37-29 (Rev.1994). Johnson asserts the following issues in this appeal: (1) whether he was prohibited from presenting a proper and meaningful defense when the court prohibited him from cross-examining the State's main witness on her admitted biases against him, as well as, when it prohibited him from presenting evidence that the identity of the perpetrator was someone other than himself, (2) whether the court allowed grossly prejudicial evidence of his previous conviction into evidence for an improper purpose and when it was not properly authenticated, (3) whether the evidence presented at trial was sufficient to establish the crime of shooting into an occupied dwelling and whether the jury's verdict was against the overwhelming weight of the evidence, and (4) whether he was denied his constitutional right to a speedy trial by the State. Finding error, we reverse.

FACTS

¶ 2. On October 14, 1994, Pearlie Williams and her daughter, Norma Rae Williams Johnson, were sleeping in the living room of Williams's home in Coahoma County when a shotgun blast came through the living room window. Another shot was fired through one of the bedroom windows. Fortunately, no one was injured.

¶ 3. Williams was the only person who claimed to have seen Johnson at the scene of the crime. She stated that she recognized Johnson's burgundy Ford Escort wagon as the one parked in her carport and that he left in that car after he shot into her home. Johnson claimed that he had a flat tire and engine problems that rendered the car inoperable. Although Norma Rae Johnson signed an affidavit the next day corroborating her mother's story, she later recanted and claimed that her mother made her sign it. Instead, she stated that she called and talked to Johnson at his aunt's house fifteen minutes after the incident from a neighbor's house. Johnson states in his brief, and the transcript reflects, that there was animosity from Williams towards Johnson and that he was not welcome to stay in her home.

¶ 4. Johnson also claimed, and Williams admitted, that she approached his attorney, Thomas Pearson, before the trial in order to borrow money from him. Pearson flatly refused her request, but he believed that Williams was offering to sell her testimony. The judge precluded Johnson from presenting to the jury any evidence of Williams's bias and prejudice.

¶ 5. Johnson was found guilty of shooting into a dwelling and sentenced to serve a term of ten years in the Mississippi Department of Corrections. Feeling aggrieved, Johnson perfected this appeal.

DISCUSSION

I. THE COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO ALLOW QUESTIONS OF THE STATE'S WITNESS SHOWING THAT SHE WAS BIASED AGAINST JOHNSON

¶ 6. Mississippi Rule of Evidence 616 states that:

For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible.

¶ 7. Rule 616 must be interpreted as it relates to other rules of evidence, such as M.R.E. 104, 401, and 402. The general rule of admissibility of evidence under Rule 616 is subject to the trial judge finding, in his exercise of discretion under M.R.E. 104, that evidence is relevant, under M.R.E. 401 and 402, to the specific facts of the case. Tillis v. State, 661 So.2d 1139, 1142 (Miss.1995).

¶ 8. Parties may liberally cross-examine proffered witnesses regarding bias and interest. Thompson Machinery Commerce Corp. v. Wallace, 687 So.2d 149, 152 (Miss.1997). The scope of cross-examination is ordinarily broad. Banks v. State, 631 So.2d 748, 750 (Miss.1994). However, the extent of cross-examination lies within the sound discretion of the trial court, but its ruling will be reversed when an abuse of that discretion is shown. McElroy, Mississippi Evidence, § 183, pp. 514-15 (1955). "The right to confront and cross-examine the witnesses against him is one guaranteed to all defendants under the Sixth Amendment of the United States Constitution and Article 3, Section 26 of the Mississippi Constitution." Shaffer v. State, 740 So.2d 273, 281 (Miss.1998)(emphasizing language of both constitutions that in all criminal prosecutions, accused shall enjoy right to be confronted with witnesses against him).

¶ 9. During the defendant's cross-examination of Williams, the following exchange took place:

Q. Ms. Williams, is it or is it not a fact that you called me up about two weeks ago?

A. I sure did.

Q. And is it or is it not a fact that you attempted to borrow money from me at that time?

BY MR. WEINBERG: Your Honor.

A. Yes.

BY MR. WEINBERG: What in the world could this possibly have to do with this case, and how can he do that without going into chambers first, as required by the rules?

BY THE COURT: I don't know. Are you going to connect it up to something?

BY MR. WEINBERG: May we be heard at the bench on that before he tries to, Your Honor, in front of this jury?

BY THE COURT: All right. Let's see where you're trying to go.

(CONFERENCE AT THE BENCH BETWEEN THE COURT AND

COUNSEL WITHOUT THE HEARING OF THE JURY AS FOLLOWS, TO WIT:)

BY THE COURT: Where are you going with this?

BY MR. PEARSON: It's going to show that I refused to loan her any money.

BY MR. WEINBERG: What does that have to do with this case, Judge? That's totally improper.

BY MR. PEARSON: Well, why would—why was she calling me?

BY MR. WEINBERG: Well, until you know, you shouldn't bring it out in front of this jury.

BY THE COURT: Y'all don't speak too loud.

BY MR. PEARSON: Well, she might be bitter because I wouldn't loan her the money, I don't know.

BY MR. WEINBERG: That's outrageous.

BY THE COURT: Sustain the objection.

¶ 10. In this case, the judge's action in limiting Johnson's cross-examination of Williams during her testimony was an infringement of the rights of cross-examination and to confront witnesses. The proffered testimony was relevant to show the full story that Williams asked for a loan from Johnson's attorney and when denied, implicated that her testimony would be harmful to Johnson.

¶ 11. The court was wrong to limit Johnson in the extent of his development of Williams's bias and prejudice against him and his attorney. This assignment of error by Johnson is meritorious, and we hold it to be reversible error.

II. WHETHER THE COURT ALLOWED GROSSLY PREJUDICIAL EVIDENCE OF JOHNSON'S PREVIOUS CONVICTION INTO EVIDENCE FOR AN IMPROPER PURPOSE AND WHEN IT WAS NOT PROPERLY AUTHENTICATED

¶ 12. In order for evidence of prior convictions to be admissible under Mississippi Rule of Evidence 609, the State must first make a prima facie showing that "the conduct giving rise to the prior conviction ... bears upon the witness's propensity for truthfulness," before a prior conviction may be admitted to impeach under Rule 609. Tillman v. State, 606 So.2d 1103, 1107 (Miss.1992). Once the State has met its threshold burden of establishing prima facie that the defendant's prior conviction is relevant to his propensity for truthfulness, the trial court must make an on-the-record determination that this probative value outweighs the prejudicial effect of the prior conviction. Peterson v. State, 518 So.2d 632, 636 (Miss. 1987). The Peterson analysis entails an on-the-record balancing of the following five factors: (1) impeachment value of the prior offense; (2) date of the prior conviction; (3) similarity between the past and presently charged offenses; (4) importance of defendant's testimony; and (5) whether credibility is central. Peterson, 518 So.2d at 636. Additionally, there is a threshold requirement, even before the Peterson factors come into play, that the State prove that the prior offense has probative value on the issue of truthfulness. Bogard v. State, 624 So.2d 1313, 1316 (Miss.1993). However, because the trial court did not follow any of the steps required by Rule 609, we hold that the admission of Johnson's prior conviction was reversible error, and on remand the trial court must make an on-the-record Peterson analysis.

III. WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS SUFFICIENT TO ESTABLISH THE CRIME OF SHOOTING INTO AN OCCUPIED DWELLING AND WHETHER THE JURY'S VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE

A. Sufficiency of the Evidence

¶ 13. A challenge to the sufficiency of the evidence requires an analysis of the evidence by the trial judge to determine whether a hypothetical juror could find, beyond a reasonable doubt, that the defendant is guilty. May v. State, 460 So.2d 778, 781 (Miss.1984). If the judge determines that no reasonable juror could find the defendant guilty, then he must grant the motion for a directed verdict and JNOV. Id. If he concludes that a reasonable juror could find the defendant guilty beyond a reasonable doubt, then he must deny the motion. Id. This Court's scope of review is limited to the same examination as that of the trial court in reviewing the motions for directed verdict and JNOV; that is, if the facts point in favor of the defendant to the extent that reasonable jurors could not have found the defendant guilty beyond a reasonable doubt, viewing all facts in the light most favorable to the State, then it must sustain the assignment of error. Blanks v. State, 542 So.2d 222, 225-26 (Miss.1989). Of course, the opposite is also true. We may reverse the trial court's ruling only where one or more of the elements of the offense charged is...